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HABEAS CORPUS. 



RESPONSE TO MR. BINNEY 



By S. 8. NICHOLAS. 



LOUISVILLE : 

PRINTED BT BRADLEY k GILBERT. 
1862. 






West. Has. Hist. 8oc. 



HABEAS CORPUS. 

-A. RESPONSE TO HVEIR,. BINNED. 



In reply to the writer's last pamphlet on this subject, Mr. Bin- 
ney, a Philadelphia writer, quotes the following passages there- 
from: 

" There is a short process by which to eviscerate the very gist 
of the question, which seems not yet to have been applied, simple 
and obvious as is that process. Let us suppose the Constitution 
wholly silent on the subject, saying not one word about the Writ 
or its suspension, where then would have been the power to sus- 
pend? No intelligent, candid man will pretend that it would not 
be clearly, indisputably, with Congress, or that by any possible, 
fair construction the power could be assigned to the President. 

" This conceded, then let it be remembered that the clause is a 
restrictive and not an enabling one. Without the restriction Con- 
gress would have plenary power, untrameled discretion over the 
Writ. It could have created the Writ, or not, at its pleasure, sus- 
pended or wholly repealed it out of existence whenever and as 
often as it thought proper. 

" Here, then, this full power, this full discretion over the Writ, 
was what had to be restrained to accomplish the plain purpose of 
the clause; that is, placing the citizen's privilege of using the pro- 
tection of the Writ upon a surer, more permanent basis than it 
stood in England, where it rests on the untrammeled discretion of 
Parliament. Who, then, was intended to be restrained by this 
clause ? Surely not the President, who, under such silence of the 
Constitution, would have had no possible control over the Writ in 
any circumstances whatever. There could be no necessity to 



[4] 

: rain his power when he would have none to be restrained. 
Full .surely it must have been intended to restrain Congress, which 
alone, and exclusively, would have the power." 

Upon this, Mr. Binney comments thus: "This objection is 
both pertinent and important. It was not overlooked in the pre- 
ceding Tract (his first pamphlet), but left for assertion and proof. 
If it is sound it materially disables the argument which regards 
the Habeas Corpus clause as a grant of authority. The objection 
u affirmative one, and puts upon the writer who makes it the 
duty of proving it. The objection is not proved at all." That is, 
the assertion that in the supposed silence of the Constitution Con- 
gress would have had full power is assumed, not proven. This 
criticism is just. It was not proved because it was presumed to 
need no proof, and would not lie denied by any lawyer— least of all 
by Mr. Binney, who had magnified the necessity for a power in 
■ government to make the suspension. 

1 1 living sufficiently rebuked the present writer for assuming in- 
stead of proving the proposition, he ex-gratia condescends to its 
-proof. In his attempt at this he makes the following most sur- 
prising affirmations : " The Constitution gives no such power to 
Congress as a power to regul courte." — " The judicial power 

of the United States does not depend at aU upon the discretion or 
regulating power of Congress."— "The appellate jurisdiction of the 
Supreme Court is the only subject to which the power of regula- 
tion by Congress applies." 

These Strange affirmations are apparently based mainly upon the 

■t, that the Constitution does nol use the word regulate in con- 

rring the Congressional power over the courts, and that their 

rUdiction being prescribed by the Constitution, it can neither be 

[arged or curtailed by Congress. Such rash deduction, from 

tch premises, was perhaps never before made by a man o( such 

ace. 

ngress shall have power to constitute tribunals inferior to the 

Court." "The judicial power of the United States shall 

■ ted in one Supreme Court, and in such inferior courts as 

m time to time order and establish^ 

These brief words cover the whole subject. Their elucidation 



[5] 

depend upon the meaning of " to constitute a tribunal," and of to 
" establish a court." That meaning cannot be better explained 
than as done by Mr. Binney. He says : 

" It clearly can mean nothing else, than to erect judicial tribu- 
nals or courts, and to give them such constitution and organiza- 
tion as will enable them to exercise the judicial powers vested in 
them. The mere erection of a tribunal by name is nothing. The 
erection of a court, and vesting jurisdiction and judicial power in 
it, would be nothing without more. A judicial tribunal is not con- 
stituted unless it is endowed with the active powers which are 
necessary to the exercise of its judicial powers. It must have the 
means of bringing parties before it, and to enforce its judgments 
and decrees. It must have the power of issuing writs, of commit- 
ting its mandates to officers to be executed, in just such kind, 
number, and variety as its judicial powers demand." 

All this he admits Congress has the power, and contends, fur- 
thermore, that it is its imperative duty to do. Yet he carps at 
the expression used by Governor Randolph, " the power given to 
Congress to regulate the courts," as " indefinite language," not 
warranted by the Constitution, it not having used that very word 
regulate, though by this, his own showing, it has used its perfect 
equivalent. By that showing, the power to "constitute tribunals " 
carries with it as ample power to regulate them as if the word had 
been used, and the clause had read to " constitute and regulate tri- 
bunals." In addition, Mr. Binney well knows it to have been al- 
ways held by the Supreme Court, that the inferior courts can ex- 
ercise no power except such as is given them by Congress. 

Judge Story says, 3 Comm. 254 : " But the same reason did not 
apply to the inferior tribunals. These were therefore left entirely 
to the discretion of Congress as to their number, their jurisdiction, 
and their powers. Experience might and probably would show 
good grounds for varying and modifying them from time to time. 
It would not only have been unwise, but exceedingly inconvenient, 
to have fixed the management of these courts in the Constitution 
itself, since Congress would have been disabled thereby from adop- 
ting them from time to time to the exigencies of the country." 
In Turner vs. Bank, 4 Dai's 8, the Supreme Court said, that the 



L«] 

disposal of the judicial power, except in a few specified cases, be- 
longs to Congress. Again, in U. S. vs. Hudson, 7 Cranch 32, the 
Court said as to the inferior courts that they "possessed no juris- 

n but what was given them by the power that created them," 
that is by Congress. 

All this being well-known to him, it is marvelous how Mr. Bin- 
ney could make the unqualified assertion that " the Constitution 
gives no such power to Congress as a power to regulate the 
courts." An ill-natured critic would hold him to these words and 
punish him with their iteration. But that being no part of the 
present purpose, he having said words in this new pamphlet enti- 
tling him to lenient treatment, notwithstanding his defection from 

rvatism, it will be confessed that most probably the words do 
not convey his real meaning. What he meant was that an un- 
stinted power to regulate does not, as he afterwards more distinct- 
ly contends, carry with it the power to destroy the courts and 
their powers. What he ought to have meant, but which he proba- 
blv did not, was that ike power did not carry with it the right to 
destroy — about which he will be talked with further along. The 
stalwart blows he gives in defense of the spirit against the strict 
letter of the Constitution and in vindication of civil liberty, whilst 
making his chivalrous attempt to prove that without the Habeas 
Corpus clause Congress would have had no power to suspend the 
are worthy of those palmy days when no suspicion of defec- 
tion from the great cause of conservatism had ever soiled him. If 
he can do so well in favor of the spirit against the Utter, we can- 
not but sigh aft it those ponderous blows he would deal in defense 
li letter and the spirit plainly combined. We cannot help a 
: fill feeling at the absence of that aid to which we are so clear- 

ly entitled. 

If the writer had any disposition that way he would be estopped 

by his own words from gainsaying Mr. Binney as to the dutiful 

obedience which should In- yielded to the spirit of the Constitu- 
tion, even when not expressed in direct language. In his review 

argumenl of the Presidenl and Attorney General Bates, he 

!he argument says that ! ■'■ \ ower, not the right, 

at any time to repeal the act giving the courts power to issue the 



[7] 

Writ, but attempts no use of that fact in illustration of the Presi- 
dent's assumed power ; and therefore the matter needs no com- 
ment. But it may be well to say, that whilst this is true, it is 
equally true that such repeal would be a gross abuse of power, be- 
ing contrary to the spirit and meaning of the Constitution, which 
are as much to be observed as its letter ; for incontestably the 
Constitution contemplates that Congress shall always furnish the 
Writ for protection to citizens, except when in cases of rebellion 
or invasion it may think public safety requires a suspension of that 
protection, Every sound statesman and lawyer will agree that a 
wilful violation of the manifest spirit of the Constitution is mor- 
ally as bad as an infraction of its plain letter." 

The case of Martin vs. Hunter amounts to nothing more than 
affirmance of the otherwise sufficiently explicit mandate of the 
Constitution to vest the judicial power in the courts, which the 
Court says " Congress could not, without a violation of its duty^ 
have refused to carry into operation." This does not in the least 
impugn the other decisions that the courts must wait the perform- 
ance of this duty before they can exercise their constitutionally 
defined jurisdiction, nor does it militate against the naked power, 
apart from the right, in Congress to violate the whole or any part 
of this duty. As said by Judge Story, it is an absolute power 
over the subject, unavoidably left to the discretion of Congress. 
Not whether the mandate should be obeyed, but as to the how and 
the when this discretion unavoidably accompanied the power, not 
the right, to disobey. The distinction between power and right is 
obvious to everyone, yet Mr. Binney intentionally, or uninten- 
tionally, so confounded them as to make it difficult to get at his 
precise meaning. For instance, he says Congress " cannot effec- 
tually omit to do what it is commanded to do by the Constitution ;" 
and yet immediately afterwards he says, " it may omit to do the 
right thing, but it violates the command of its creator by so omit- 
ting, and brings on the destruction of its own being." What he 
means by the destruction of its own being is not understood. He 
surely does not mean that a temporary repeal of the writ of Hab- 
eas Corpus would necessarily involve that destruction. 

This thing of the legislative department refusing or omitting to 



[8] 

obey a mandate of the Constitution is by no means a novelty in 
our system. According to the writer's recollection, the Supreme 
Court has detected more than one instance to prove that Congress 
has never yet enabled the courts to exercise the •whole judicial 
power. 

A notable instance of a failure of the Legislature to obey an ex- 
press command of the Constitution occurred under the former Con- 
stitution of Kentucky, which expressly commanded the Legisla- 
ture to provide for bringing suits against the Commonwealth, 
yet during the sixty years of its existence this command was 
never obeyed. 

Suppose Congress omits this duty, where is the remedy? Who 
is to enforce the mandate — who to supply the omission? Disobe- 
dience to a command of the Constitution is wholly unlike, in this 
aspect, a violation of its prohibitions. For the latter there is 
remedy, through the other departments ; for the former there is 
none. It is idle, therefore, to deny the mere abstract power, 
without reference to the right. 

Mr. Binney says it is not an untrammeled power, because it is 
trammeled by the duty referred to. If he means morally tram- 
meled, he is right; but, when we speak of an untrammeled con- 
gri ssional power, we mean one that has no available, effective 
legal trammel, and such is the power to regulate the courts. 

The power has been so repeatedly exercised, with the express 
sanction of the Judiciary, and the undoubting approval of every- 
body else, that it is no longer open to denial. Whoever wants to 
limit the power for any available purpose must point oul the ex- 
press limitation in the Constitution. This Mr. Binney does 
attempt to do, but contents himself with referring to certain abuses 
of the power which would be a violation of the spirit of the Consti- 
tution, tin' result of which being merely a moral oensure on Con- 
. Leaving such abuses to have lull effect, without any legal 
check. 

Sixty years ago Congress thought proper to repeal out of exist- 
ence the whole then batch of inferior courts, and establish others 
in their place. Suppose this bad been done by two different bills, 
and that, after passing the repealing bill, sonic casualty had, for 
! the passage of the other, the establishing bill ; 



[9] 

that fact would not have impaired the legal validity of the re- 
pealing act. No judge would have been mad enough to attempt 
to exercise his repealed powers. 

At the time of the abolition of imprisonment for debt, it was a 
prevalent opinion in the profession that there was no other suffi- 
ciently efficient remedy to enforce the payment of debts. Suppose 
that opinion to have been indisputably correct, would such gross 
abuse of power in leaving the courts without the proper remedial 
process upon so important a subject have invalidated the act repeal- 
ing to ca sa ? No court would have dared to use that or any 
equivalent process. 

Notwithstanding his own scathing castigation of all such lati- 
tudinarians, Mr. Binney at least, it would seem, though others do 
not, deems an anonymous writer in the National Intelligencer, 
last summer, justifying the presidential usurpation, as some au- 
thority on a constitutional question. That writer, according to 
recollection, claimed the power of Congress to repeal the Writ 
out of existence, not merely in the absence of, but in despite the 
clause, and made that fact a main basis of his argument. 

Mr. Binney attempts to bring to his aid what he deems a de- 
veloped opinion of the members of the convention that the clause 
was an enabling, not a restrictive one. He says : 

"When the vote in convention was taken, while upon the di- 
vision of the clause, the delegates were unanimous in affirming the 
first member of it — ' the privilege of the Writ of Habeas Corpus 
shall not be suspended.' The three States of North Carolina, 
South Carolina, and Georgia voted against the second member — 
' unless when in case of rebellion and invasion the public safety may 
require it.' Could they have voted against the latter clause under 
the impression that the general and unlimited power was already 
given to Congress? There is no rational interpretation of the 
vote but that the first member was declarative of a general prohi- 
bition of the power, and a confirmation of the general principles 
of Magna Charta, of the petition of right, and of all that had been 
previously declared, and that the second member granted power 
to the general government in the excepted cases." 

Yes, there is another rational interpretation, and one much 



[10] 

more rational than his. That is, the three States wanted an un- 
qualified, whilst the others wanted a qualiiied prohibition of the 
exercise of a power which they all knew that Congress would have 
over the Writ. If they did not so know, why the unanimous vote 
in favor of the first member of the clause, which is purely restric- 
tive, and has nothing enabling about it? It could have had no 
purpose to restrain any supposable power in the President ; for 
even Mr. Binney admits that without the whole clause, the en- 
abling latter member, he would have had no power over the sub- 
ject. They must have meant to restrain congressional power, for 
there was no other power to restrain. If the last part had been 
voted down the prohibition would have been unqualified. Now, 
then, this exposition of the views of the members by their votes, 
so far from subserving his purpose, operates in the directly oppo- 
site way. It is the strongest possible, most satisfactory proof so 
derivable, that they unanimously thought Congress would have the 
power unless prohibited. 

The very language of the clause is, if possible, still stronger 
proof. If meant as a qualified prohibition, it is apposite and ap- 
propriate, whilst it is wholly inartificial and inappropriate as a 
grant of power. If a grant to the President had been intended, 
some such language as the following would have been required, 
and certainly used: "The President may suspend,'* &c., or he 
"may treat the privilege as suspended." When we find such dif- 
ferent language used, it is irrational and illogical to contend that 
the clause is an enabling one, intended to give the power to the 
President. 

Mr. Binney permits himself to say, "there is not a word 
like restriction or limitation in the first member of the clause, " 

though it Bays "the privilege shall not be suspended." If this he 
no t ? i, in the name of common sense, what is? [f he 

means a quibble upon the slight difference in this respect between 
ing of restriction ami prohibition, he contends for a dis- 
tinction without a difference. The clause, viewed as a modified pro- 
hibition, is t.» all intents a qualified restriction. It equally pre- 
supposes a [lower somewhere, to he prohibited. There being no 
power anywhere to suspend any law, especially the law creating 
the Writ, except in Congress, the intention must have Keen to pro- 



[11] 

hibit Congress, which would be equally as full a recognition of the 
otherwise untrammeled power of Congress over the Writ. Either 
way, the argument of Mr. Binney is "materially damaged." 

As to the idea that without the clause Congress would have no 
power, because of the absence of specific grant, to suspend the 
Writ, an old school Federalist must lose the cunning of his school 
before he can find any difficulty in proving the power to suspend 
to be an appropriate necessary and proper incident to the power 
to suppress insurrection or repel invasion. If the suspension of 
the right to freedom from arbitrary arrest, and all remedy for the 
violation of the right, be an inseparable or necessary accompani- 
ment to such incidental power, he would gulp that also with a clear 
conscience. 

Mr. Binney seems at last to be awakened to the recollection of 
the great importance of the Writ, and speaks of it as the " princi- 
pal bulwark of liberty," "the great fundamental law of human 
liberty," " the inestimable right of personal liberty." Now, when, 
as everybody knows, and as the President and Attorney General 
distinctly admit, the Constitution was made in " special dread " 
of the executive power, it is contrary to every rational presump- 
tion to suppose an intention to make the President the custodian 
or special guard of that bulwark. To repel that presumption the 
language must be strong, unequivocal, which no one can pretend 
the clause to be, as a yielding of such power to the President. He 
reaffirms and reargues to prove the President to be the most 
suitable and trustworthy guardian of the sacred trust. The writer 
reaffirms his own position, that the President is the least suitable, 
the least trustworthy functionary of the whole government ; but, in- 
stead of rearguing the matter, he will do vastly better, by adopt- 
ing the language of Daniel Webster, than whom the country has 
produced no higher authority on constitutional questions. The 
following quotation is from that most perfect specimen of pure 
eloquence ever uttered in our language, his denunciation of the 
one man power : 

" The spirit of liberty will not permit power to overstep its pre- 
scribed limits, though good intent, patriotic intent, come along with 
it. This is the nature of constitutional liberty ; this is our lib- 
erty. 



[12] 

" The contest for ages has been to rescue liberty from the grasp 
of executive power. Whoever has engaged in her cause has strug- 
gled for the accomplishment of that object. On the long list of 
the champions of human freedom there is not one name dimmed 
by the reproach of advocating the extension of executive power. 
On the contrary, the uniform, steady purpose of all such champi- 
ons has been to limit and to restrain it. 

" Through all this contest for liberty, executive power has been 
regarded as a lion that must be caged. So far from being the ob- 
ject of enlightened popular trust, so far from being considered the 
natural protection of popular right, it has been dreaded as the 
great object of danger. 

" Who is he so ignorant of the history of liberty, at home and 
abroad — who is he from whose bosom all infusion of Aim 
spirit has so entirely escaped — as to put into the mouth of the 
President the doctrine that the defense of liberty naturally results 
to executive power, and is its peculiar duty? Who is he that is 
generous and confiding towards power where it is most dangerous, 
and jealous only of those who can restrain it? Who is he that, 
reversing the order of State and upheaving the base, would poise 
the pyramid on its apex? Who is he that declares to us, th] 
the President's lips, that the security for freedom rests in execu- 
tive authority ? Who is he that belies the blood and libel 
fame of his ancestry by declaring that they have invoked execu- 
tive power to the protection of liberty'.' Who is he that thus 
charges them with the insanity or reck; . f thus putting the 

lamb beneath the lion's paw? No, sir — no, sir; our security 
our watchfulness of executive power. 

"I will lint acquiesce in the reversal of all jusl ideas ofgo\ 
ment. 1 v, ill not degrade the character of popular representation. 
I will not blindly confide where all experience admonishes I 
jealous. / will not trust executive /<"'/■</•. vested in <> single m 
(rate, to keep t/i<- vigils of liberty, 

" Encroachment must be resisted at eery Btep. Whatever 
. ,!' there be an illegal exercise of power it mui 
ted in a proper manner. We are qqI to wail till greal 
chief eiones — till the government is overthrown, or liberty itself 



[13] 

put in extreme danger. We should not be worthy sons of our 
fathers were we so to regard questions affecting freedom." a 

The result thus far is, that the writer was accurately correct in 
assuming that without the Habeas Corpus clause Congress would 
have had plenary power, untrammeled discretion over the Writ. 
Mr. Binney himself by this time will be sufficiently sorry that he 
ventured to call for the proof, and, to relieve him, its develop- 
ment will not be further prolonged, not forgetting, however, to 
remind him that, according to his concession, his argument is 
thereby " materially disabled." 



To the emphatic denial by the writer of any ex-officio presiden- 
tial power of arrest, and his reference to the unanswered chal- 
lenge made by him months before "for the production of a single 
instance before the advent of President Lincoln of even an attempt 
by any President or Governor to exert the power of arrest, Mr. 

a. Henry Laurens, the Ambassador of the U. S. who was captured on his 
way to Holland and detained a prisoner in the tower of London for two years, 
kept a journal of his mission, which was published, and is to be found in a 
book the title of which is, perhaps, "South Carolina State Papers." The 
writer has not seen the book, but states from the information of a gentleman 
who has recently read it. 

Laurens says that after his release from prison the English officials treated 
him with great courtesy. At the table of Lord Sbelburne, the then Premier, 
he was the honored guest among a large company of magnates. After din- 
ner, the conversation turning upon the separation of the two countries, Lord 
Shelburne remarked to him, "lam sorry for your people." "Why so?" 
asked Laurens. " They will lose the Habeas Corpus." "Lose the Habeas 
Corpus!!" "Yes; we purchased it with centuries of wrangling, many years 
of fighting, and had it confirmed by at least fifty acts of Parliament. All this 
taught the nation its value, and it is so ingrained into their creed, as the very 
foundation of their liberty, that no man or party will ever dare trample on it. 
Your people will pick it up and attempt to use it, but having cost them noth- 
ing they will not know how to appreciate it. At the first great internal feud 
that you have, the majority will trample upon it, and the people will permit 
it to be done, and so will go your liberty." 

All history affords no higher evidence of sagacity, and no statesman's pro- 
phecy eighty years in advance was ever nigher complete fulfillment than by 
the daily transpiring acts around us. 



[14] 

Binney contents himself with responding: "The Louisville writer 
touched this point with only a short denial, without any attempt 
to prove the President's general incapacity to issue a warrant of 
arrest. :;: If the clause intended to give him 

the power of suspension, the means necessarily follow, if they did 
not exist before." Not so fast, Mr. Binney; you cannot be per- 
mitted to slide over a difficulty quite so easy as that. The Con- 
stitution explicitly gives the courts the judicial power of the na- 
tion ; yet they themselves have uniformly held that the means to 
carry out the power did not necessarily follow, but they were de- 
pendent upon such as Congress might choose to give. So also as 
to the President; he has no auxiliary or incidental power, but is 
dependent upon Congress for the grant of such means not ex- 
pressly given as are necessary to carry out his constitutional power. 
This being, therefore, no proof, and he offering no other, the infer- 
ence is that he is without proof to maintain the President's power 
of arrest. The consequence is, that if validity were allowed to his 
novel crotchet as to the presidential power of suspension, it would 
amount to nothing, would not be worth contending for, he had 
just as well be compelled to wait for a congressional suspension. 

The inference is that Mr. Binney thinks the President has no 
ex-officio power of arrest, or he would have tried to prove it, and 
not have resorted to such fallible, make-shift argument Be 
know that the fact of the want of such power is very damaging to 
his main argument. For how would the matter thus stand'.'' The 
Convention, knowing that he had no pow er of arrest, and that all in- 
cidental or auxiliary powers were confined to Congress, Mr. B .- 
ney's construction would convict them of tin- bungling folly of 
attempting without actually conferring the power of suspension, 
an arrest, according to him, being the only mode of suspene 
The fact of suspension requiring an arrest before it could occur, 
the Conventi in would have conferred the suspending power upon 
Mime department having the power of arrest, or have expn 
conferred that power on the President, in plain words, and not left 
it to be discovered for the first time seventy years after the I 

Btitution was made, and require the discovery to he maintained hy 

one of the mosl Bubtle arguments ever penned. W Mr. Binney 



[15] 

had not fortunately lived till now the discovery never would have 
been made. 

Mr. Bullitt having produced in his instructive and very able 
pamphlet such a long roll of eminent judges, lawyers, and states- 
men, including such names as Marshall and Story, who have ex- 
pressly held the suspending power to be in Congress, justifies the 
belief that the roll, if completed, would amount to more than a 
hundred, whilst there are none, not one to the contrary. These 
opinions, repeated without contradiction from the birth of the Con- 
stitution steadily on down to the present day, amount to a fixed, 
settled construction, fully as authoritative as an express decision 
of the Supreme Court. The position of the President and Attor- 
ney General not having been indorsed by a single respectable 
lawyer, notwithstanding the daily proof that "thrift follows fawn- 
ing," and Mr. Binney's construction, notwithstanding the great 
ability of its defense, having so signally failed of acceptance, it 
would seem to be the duty of all to acquiesce in the old, original 
construction of seventy years duration, as the only true one. 



In answer to the writer's suggestion that Congress could give 
all needful power during a suspension to officers appointed by the 
courts without conferring any of it upon the President, Mr. Bin- 
ney says : " It is preposterous to suppose that somebody, not the 
President, may be selected by Congress to execute the power." 
The proof he gives is this : " The doctrine that Congress can in 
any event choose another executive when the President is in office 
is revolutionary." If intended as a slap at his Representative, 
Stephens, who claims the power to appoint a dictator, it is well 
enough; but if he means that the conferring such power on infe- 
rior officers appointed by the courts, then his reason is ludicrously 
"preposterous." The Constitution having said — "Congress may 
vest the appointment of such inferior officers as they think proper 
in the courts " — and not having restricted the powers to be con- 
ferred on such officers, nothing .can be more ridiculously prepos- 
terous than that the exercise of such plain power for such pur- 
pose is "revolutionary," or that it is equivalent to choosing 



[16] 

another President. All that is required to effect the objects of 
suspension is some enlargement of the powers of arrest and de- 
tention, 'with which, ordinarily, the President has nothing to do. 
They appropriately belong to the judicial department. Yet such 
is his jealous affection for executive power that he cries out against 
so small an enlargement of the appropriate power of the judicial 
department as "revolutionary," as equivalent to choosing another 
President. It might well happen that a President will be, if not 
in league, in strong sympathy with a rebellion, and, therefore, not 
fit to be trusted with the powers necessary during a suspension. 
To deprive Congress in such a state of case of all right to select 
any other as the recipient of the trust would be a suicidal emascu- 
lation of the Government. 

This means of depleting the overgrown, enormous patronage of 
the executive should have been resorted to long ago. There is now 
a pressing need for its immediate application in the mode of ap- 
pointing the collectors under the enormous tax bill. The ap- 
pointment of officers to money trusts should never, when avoida- 
ble, be left to political party influence, experience having shown 
that most of those appointed under that influence become default- 
ers. The appointment of the collectors should be vested in the 
District Courts, as also that of their supervisors, to whom the col- 
lectors should be required to report twice, ami with whom to make 
tlement once a month, subject to the revision of the Auditor 
of the Treasury. This arrangement, with power in the District 
Courts promptly to enforce the requisitions of the supervi 
would probably save many millions to the nation. It would also 
relieve the overburthened President from an irksome duty, which 
no one knows better than himself it is impossible for him to per- 
form in a manner satisfactory to himself or beneficial to the 
nation. 



B< fore taking final leave of Mr. Binney, he is entitled to thanks 

from the • Qservatives, which the writer will take upon himself to 

□ their behalf, lie saw: " The scope of the Constitution is 

to protect, defend) and secure the blessings of liberty) universally 

and without exception, unle ceptioo is declared in the in- 



[17] 

strument." " The power ultima necessitatis does not exist in this 
limited government." These noble words deserve to be inscribed 
in letters of gold on the Capitol, and on every conservative banner 
in the next campaign against the destructives. They are words 
that desponding patriots have long impatiently listened for from 
him. Let him still wear his proud plume as " head of the Amer- 
ican bar." Let not his " flushed covey " attempt to pluck a 
down from that plume. Let his crotchet about the suspending 
power pass into oblivion. Let this be no part of his otherwise 
beautiful biography. Let it not mar his enviably clean epitaph. 
So long as he adheres to those noble words he is still worthy to 
lead our profession when doing its devoir against the higher-law 
men, the law-of-necessity men, the paramount-law-of-war men, and 
in defending the Constitution against the traitorous war now waged 
by fanatics for its destruction. He will aid us whilst teaching the 
nation, in his own language, that "the Habeas Corpus is the prin- 
cipal bulwark of liberty," "the great fundamental law of human 
liberty," and also in teaching the value of " the inestimable right 
of personal liberty." He will aid us in reminding the nation, in 
the choice language of the recent incomparable speech of Mr. 
Thomas, of Massachusetts, that " the Constitution itself is 

THE SALUS POPULI, AS IT IS ALSO THE SUPREMA LEX." 

Mr. Binney is also entitled to thanks for having "flushed and 
put upon the wing the covey of reviewers from the Philadelphia 
bar," which very able covey, it is hoped, have enlisted for the war, 
and will give the country many other manifestations of such de- 
cided ability. It has been the proud boast of the profession, both 
in England and in this country, that in every contest for liberty 
it has always led the van, whether in assault or defense. Before 
folding their wings and settling back into that apathy from which 
it seemed so difficult to arouse them, will they not do what they 
can to make that vaunt good in this hour of liberty's utmost need? 
Will they not aid in arousing the profession throughout the coun- 
try ? Will they not take jurisdiction over that delinquent son of 
Pennsylvania, her most prominent Representative, and administer 
justice upon him ? It is he who shamed her as much as if she had 
given birth to an Arnold, a Floyd, or a Twiggs, by being the first 
2 



.[18] 

native American base enough to immortalize his own infamy, by 
affirming in the councils of the nation, that Congress has power to 
appoint a dictator over this free country. 

Surely the people of Pennsylvania will teach this man the pen- 
alty for thus shaming her. Surely they will tell him, that he is 
the only Pennsylvanian who does not feel and will not say with 
Shakspeare, " I had as lief not be as live to be in awe of such a 
tiling as I myself," and who would not as "soon brook the eternal 
devil as a dictator" in this country. 

A fanatic Senator had the unblushing effrontery the other day 
to boast in the Senate, that he waa not to be tied by the Constitu- 
tion, that he meant to usurp whatever power he chose to think 
necessary for carrying on the v. ar. The meaning of which is, that 
he means to usurp whatever he deems necessary for the accom- 
plishment of his fanatical purpose. This worst of all treason, this 
wilfully perjured treason against the Constitution, we shall have to 
arraign at the great bar of the nation, and obtain from the people 
a verdict of attainder against the traitors. To this traitor, the 
admirable Senator has already administered the following ex- 
cellent rebuke : 

"The great question before the world to be now settled by as 
is, can we sustain the integrity of our Government, and perpetuate 
our institutions, and do it according to the limitations and provis- 
ions of the Constitution? That is, to show that our Consti- 
tution is competent to the trial, and nothing short of that. If, 
when this occasion arises, we are compelled to resort to means 
which, in effect, arc the means used by Btronger Governments, our 
experiment is a failure. If we are constrained to call up. invoke, 
and put in exercise in any one department of the Government— it 
is immaterial in what department of the Government— more of 

power, more of force than the Constitution provides, or than is 

limited by that Constitution— the moment we do that, or arc con- 
strained from our supposed necessities to do it, we acknowledge 
before the world that our institutions arc insufficiently founded, 
;iII ,i that wo are after all compelled,io the period of trial, to resort 
to the force, which, they sa>,is necessary to the existence of a na- 
,a, and our experiment it a failure. * * It is vain and idle 



[19] 

in us to war against a part of our people because they hare made 
war upon this Government, if we at the same time have to sap 
the foundations of the Government by stabbing through the vitals 
of the Constitution. 

" It will not do to say, that because we need to do this thing, 
because it is necessary in our judgment, Ave will do it for that rea- 
son. The limitations and prohibitions of power in the Constitu- 
tion were put there on purpose to prevent our doing such things 
when we wanted to do them. They were not put in to prevent our 
doing things we never wanted to do. When it provided, for in- 
stance, that you should not pass any attainder bill, that you should 
not take away any man's property without due process of law, 
that no man should be punished unless it was on conviction by 
a jury, that no man should be twice punished for the same offense — 
prohibitions of this kind are prohibitions to everybody, and they 
were put in to prevent Congress doing such things when they 
wanted to do them. They were put in there on purpose to pre- 
vent us doing these things when we thought they were necessary. 
They were not put in to prevent our doing these things when we 
did not want to do them, and when they were not necessary at all 
in our judgment," 

Let us defeat these destructives before the people. Let us pre- 
serve the Constitution, and silence the jubilant shouts of the des- 
pots of Europe, the English press, the English Reviewers, and the 
English speakers, over its supposed destruction, over the supposed 
failure of the " model Republic." 



A last word with Mr. Binney. Tradition tells an anecdote of 
Washington in his younger days, which is deemed to furnish the 
highest illustration of true manhood that he ever gave. He was 
knocked down by a gentleman for an insult he had given. They 
were parted. Meeting a few days afterwards, and whilst the gen- 
tleman was bristling up in expectation of a hard fight, Washington 
approached him with a smile and an open hand, saying, "Sir, I 
come to beg your pardon." 

Should this suggest to Mr. Binney the propriety of an amende 



[20} 

towards his conservative countrymen, whatever he offers will be 
worthy of himself — it will not be less than his active aid in main- 
taining the verity of his own words : "The scope of the Constitu- 
tion is to protect, defend, and to secure the blessings of liberty, 
universally and without exception, unless an exception is declared 
in the instrument. The power ultimce necessitatis does not exist in 
this limited government." What will not that aid be worth if he 
suffer his heart to be revivified, rejuvenated to its pristine love for the 
Constitution — the pure loyalty of an old-time patriot? The Con- 
stitution is in imminent peril from the war that fanatics are waging 
for its destruction. It is even in greater peril than the Union. 
Let us not, in solicitude for the lesser, overlook the greater, the 
more important danger. We of the profession, the appointed and 
sworn defenders of the Constitution, should stint no peaceful ef- 
fort for its preservation. If destroyed now, there can be no ra- 
tional expectation of restoration. Its death will be without re- 
demption or resurrection; "no Promethean heat can its light re- 
sume." Like violated chastity, after repeated unresisted, unpun- 
ished violations of the Constitution, its purity, its loveableness, its 
sanctity, its claim to affectionate, willing obedience, will be all 
gone, and gone forever, without even the possibility of restoration. 
Shame, shame, a thousand shames upon us, it' we permit its de- 
struction without manful resistance ! Those of us Avho have 
"fallen into the sear and yellow leaf" will go on through the 
remnant of our days in despondful mourning to unhonored graves, 
repeating the despairing sigh of the broken-hearted Roman pa- 
triot whilst viewing the results of dictatorial power: "Alas! lib- 
erty, thou art but an empty name!" Younger men may live in 
repentance " beneath the legs" of some " huge Colossus" of tyr- 
anny, amidst the agony of national trials, to learn the value of that 
liberty they ignominiously suffered to be destroyed. 



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